PT-2023-001131 - [2025] EWHC 2728 (Ch)

Fecha: 21-Oct-2025

Discussion and analysis

Discussion and analysis

Issue 1: Was the Deed delivered by the Defendant?

64.

In my judgment, it was. My reasons for so holding can be stated shortly:

(1)

The Deed is in standard form. There is nothing in the wording of the Deed to suggest that it does not take effect immediately upon signature or that it was not immediately binding.

(2)

There is nothing in the covering email from the Defendant to the Claimant which gives any indication that the Deed was not intended to take immediate effect. The subject line of the email states simply “Executed Deed of Variation”. The text in the body of the email, while brief (“Here are the two documents to hand, finally” – the other document being the Will) likewise does not suggest any conditionality on the delivery of the Deed.

(3)

Looked at objectively, and from the standpoint of the reasonable recipient, the Deed was intended to take effect immediately.

(4)

At the time when the Deed was delivered, the Defendant was aware that the Claimant intended to use the Deed for obtaining mortgage finance. The Defendant’s own pleaded case is that she provided a copy of the Deed to the Claimant “… not by way of delivery, but to assist him in obtaining finance to purchase the Property.” The Defendant clearly was aware that the Claimant intended to provide the Deed to third parties. In particular, she knew that it would be presented to the prospective lender who would be advancing monies on the faith that the Claimant had an interest in the Property. Although she was reluctant in cross-examination to accept this, any mortgage broker or lender when presented with the Deed would see it as unconditional. The Defendant explained that she assumed that any third party would need various other documents, such as sight of the original, a legal opinion on its validity, and other certified documents, before agreeing to lend in reliance on the Deed. I found this attempted justification unconvincing. The Defendant accepted in cross-examination that once the mortgage lender received a copy of the Deed, it would begin working on the basis that the Deed could be relied upon. The Defendant must have understood that the Claimant needed to be in a position to prove that he had the deposit.

(5)

In any event, even if the Defendant considered that any lender would want to see further documents, her subjective view about the enforceability of the Deed is not determinative.

(6)

The Defendant is a solicitor. If she had truly intended at the time to impose conditions on her gift to the Claimant, she could easily have done so. The language used in her email of 22 November 2022, where she declares that she has decided “… to revoke, terminate the Deed of Variation with effect immediately, based on your fraudulent misrepresentations” is consistent with a recognition on her part that she was then seeking to set aside an otherwise valid and effective legal document. It is noticeable again however that no case for fraudulent misrepresentation was in fact advanced in these proceedings.

65.

In so far as the Defendant still relies on the wording in her email dated 25 September 2022, which is that she would only release the Deed “to any third party” upon the grant of probate, and confirmation of the sale going through, the Claimant is correct to say that this must be seen in context. By the email on 10 October 2022, the Claimant implicitly agreed for it to be released to third parties, including the Claimant’s proposed lender and his mortgage broker. Matters had moved on. The Defendant did not stipulate, as she could have done, that while the Deed was being provided to the Claimant, it was for information purposes only or could not be released until there was confirmation of a sale going through, or even that it was subject to delivery or subject to contract.

66.

In her written closing, the Defendant submitted that there were “two great mysteries” at the heart of the Claimant’s case, the first being what happened between 4 October 2021, when the parties met at the Property, and 18 November 2021, when the Defendant came to her solicitor about drafting the Deed, and the second concerning what happened between 2 (or 3) November 2022 and 5 November 2022, when it is common ground that the Defendant was very unhappy about the proposed conversion of the Property.

67.

It does not seem to me that there is a great mystery about either. With regard to the first, the Defendant had been told by a distant relation that she could vary the distribution under the Will, and pass her share onto another person. The Defendant was interested in advice regarding the making of such a gift to the Claimant (or the Claimant together with Mr Maghoo). In relation to the second, the Defendant had second thoughts. There were in all likelihood a number of reasons for this, her realisation of just how extensive the conversion at the Property would be, coupled with concerns that any proposed sale to the Claimant would inevitably lead to, at the very least, complaints and possibly legal challenges from the other beneficiaries. The Claimant’s case is that the Defendant changed her mind because, following the Claimant’s stroke, the Defendant realised that the Claimant was less able to carry out chores for her. This may well have been a further contributing factor. In any event, the Defendant unequivocally and without conditions delivered the Deed.